'A Nation of Rotten Punishers'

I have been thinking about Richard Nixon, Richard Kleindienst, Patty Hearst, General Singlaub, the Vietnam draft evaders, Bert Lance, Earl Butz, Gary Gilmore, Spiro Agnew and the New York City looters of last summer. What got me to thinking about all these people and groups was Richard Helms. As the argument deepens over whether the former CIA director has been "disgraced" or "honored" by his conviction for misleading Congress, and whether he has gotton off "too light" or - conversely - should never have been prosecuted at all, it occurs to me that we keeping finding ourselves in the same predicament. It concerns our response to a broad range of lapses, crimes and indiscretions in our public life, and it is this: Big, rich and powerful as we are, we have almost wholly lost the capacity to punish - or at least to punish wisely and well.

This is true both at home and abroad, and it bids fair to drive us mad. How do you "punish" South Africa or OPEC or Idi Amin now that war has become so perilous and diplomatic pressure so vulnerable to the Frisbee effect? What less cataclysmic means are at hand to express national displeasure or to reaffirm national values or to serve notice that we not take kindly to some act and mean to make it costly in the future? At home, I would say our great clunking legal and corrections system is more or less the equivalent of the use of military force abroad: It limits the choices severely, being much more than we want to bring to bear in its full force on, let us say, a former president or a young man who has fled the draft to Canada. So we make a deal that satisfies no one and antagonizes all.

You would not judge this to be the case, of course, from the predominant image of our popular culture, which is that of good guys prevailing and bad guys getting their just, if gory, deserts in a blaze of TV gunfire every night. But the Helms case, I fear, with all its gray shades and complexities, is a better metaphor and guide to understanding our condition. In real life we can't even agree on who the bad guys are; we have defective machinery for punishing them, even when we can; and we are extremely skittish about the whole idea of punishment - if in fact we think it a suitable aim of policy at all.

Defending the Justice Department's request that Helms not go to prison. Attorney General Griffin Bell made a revealing remark. It "doesn't sell to so well with me," he observed, "to say we haven't done enough to somebody who is a first offender." The idea of Dick Helms as a "first offender" (what will be the second offense?) gives some measure of the gap between our criminal-justice system and the kinds of acts and offenses we are tying to bring within its reach. How much laundry would he have had to fold at Gentleman's Prison to expiate his guilt? How much should John Mitchell have to fold, for that matter? Because we dare not visit on these men the out rages the law routinely visits on the obscure - consignment for prolonged periods to prisons where inmates are abused, beaten and raped - we work out these lesser measures.

In another kind of society, not necessarily a better one, there would be means available for chastising, reprimanding and, yes, punishing that were not so inappropriate to the offense.A smaller, tighter, more hierarchical structure affords greater opportunities for discipline and a greater vulnerability to "disgrace." In some countries it really matters when they take down your picture or remove your name from an honors list. At West Point they stop talking to you and in the Senate you can be censured. But these are closed and special systems. And for us there seems available only the deprivation of a person's job or rank or status - a Butz, a Lance, a Singlaub - or some awful mishmash of criminal justice.

I am aware of what is regarded as the compelling rationale for the latter kind of treatment: the sanctity and universal applicability of the law are meant to be proved by enforcing its provisions against big shots, and respect for the law is meant thus to be increased. I wonder. Surely for those who abominate Helms and all his works, nabbing him for mendacity before Congress, itself in many ways a fountain of mendacity, must be more or less akin to getting Al Capone on income taxes. In fact, speaking as one who is, relative to many people, sympathetic to Helm's situation, I can think of several CIA actions during his terms of office I'd rather have him prosecuted for - if we're going that route. And in any event, those most committed to punishing him for the failure to come clean with Congress are evidently far from satisfied with the penalties that have been meted out.

It is worth noting that some of those beating this drum the loudest are not people you normally think of as "punishers" and lusters after prison terms for others - while some of those who are defending the relative leniency of the sentencing of Helms are . My point is that it's all very well to talk about about the law of the land and its sanctity, but the fact if that in this age of civil disobedience and profound political division, we are pretty selective about the sanctity of the law. Some people didn't want the violent Weatherman-type war protesters punished. Others don't want Helms punished. In each case we encounter the claims of a higher law and a conflict that has been going on for at least a decade now, which may be summed up: My higher law is higher than your higher law.

Finally, we are all made just a tad uncomfortable by the idea of punishment at all - it seems so, well,cruel and unenlightened. "He has suffered enough," we will say, hoping to express compassion but actually betraying a strange notion that punishment is meant to cause people to sucfer.The infusion of psychiatric theory into our moral judgements has had a lot do with this, and not all for the better, either. And as a result were are left not just with a number of conflicting theories about which laws deserve respect, but also with much conflict about the purpose of punishment. Are we trying to set an example? To deter others? To reaffirm our values and purposes? To keep a bunch of menacing rapscallions off the streets? Do we want to stigmatize offenders? Reprimand them? Make them pay? Make them hurt?

Clearly, so long as we are of a couple of hundred million minds on this, nothing will change. And I do not have some handy proposal to make. My feeling is only that is inhibition on expressing our national preferences and dislikes in any satisfying way is the source of much of our present discontent.We are a nation of rotten punishers - too harsh and too mild and too confused at once. The picture is of a nation reviving the hapless hustler-killer Gary Gilmore from a suicide attempt, so that he could be dispatched as due process commanded - by agents of a society itself deeply divided on the wisdom of capital punishment.